Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Saturday, December 31, 2016

Ruminations 68(6) (From Principle to Terror): Looking Back on 2016 in Epigrams and Aphorisms

In many ways, the year that is ending has proven to be quite
significant. Mostly, it served as a hard reminder that the carefully
crafted project of legalization and judicialization of the economic,
religious and cultural spheres that were meant to serve as the
foundations of a global order to make global war effectively impossible
has begun to fray. And with the fraying of the
legalization-judicialization project, politics and power have again
emerged as significant factors in the organization of law and governance
systems. It has seen the destabilization of the Middle East and its
consequential destabilization of Europe. It has seen the retreat of a
great power, a perpetually brooding political Colossus trapped in its
own doubts and pretensions, and the flexing of muscles of rising powers
through territorial expansionism and bullying of weaker partners. It has
seen the exercise of mass power in the United States and other places
that surprised elites that had long grown confident of their ability to
manage their people, whether under Marxist Leninist or democratic
principles. It has seen the unmasking of the militarization of the
internal security and police structures of even the most stable and
democratic states, the abandonment of law in battle against drugs and
the emergence of law as a technique of managing corruption. It has seen
the development of governance beyond the state and the determination of
states seeking to substitute itself for the market. It has seen states
us law, norms, markets and culture to drive efforts to perfect "model"
workers, individuals and citizens, which can then serve the state's
perfection of its markets, its centrally planned decision making
structures, or its structures of divine command on earth. The Jewish
people continued to provide fodder for all sorts of activity and were
used by left, right and themselves to their quite distinct ends, as
other religious institutions sought to maintain or expand their
institutional jurisdiction within legal, cultural, economic and social
structures in and beyond states. The rise of global communities has now
been challenged by states seeking to avoid the implications of normative
communities that cannot be confined to and managed by the state.

2016 is rich with these events that expose the complex connections
between law, politics, economics, religion and culture. These events
will set the course for 2017, even as new actors seek to take manage
people, events, states, enterprises and other institutions with
substantial consequential effects of the mass. But most of all 2016
evidence both the great power and the fragility of mass participation in
institutions in which they find themselves in a continuous loop of
mutually dependent overlordship.

With no objective in particular, this post provides my summary of the slice of 2016 in which I was embedded through epigrams and aphorisms.

1. Great principles are personal--those who saw nothing but greatness when on January 22, 1993, President Bill Clinton selected his wife to head up the health reform effort might have been among those ferociously condemning President Elect Trump's invitation to his daughter and son in law to join him in a meeting with the Japanese Prime Minister in 2016.

2. It is invariably in the service of feminism that feminists sacrifice women: continuing the old patriarchal trope of attacking a man through his wife takes us back not forward, and it is forward that we should be aiming, whatever our own views. [On the clucking around the semi-nude photos of Melania Trump taken for a modeling photo spread in 2000 as a means of attacking her husband, the President elect in 2016 (here and here)]

3. Normative principles are morsels best served to others but otherwise avoided; it should not surprise, then, that a prime mover of imposing human rights constraints on business behavior has itself been alleged to have violated the human rights of its own people . [A group of United Nations human rights experts* have criticized the Government of Ecuador for stifling civil society, after issuing an order for the closure of an NGO which supports environmental and indigenous rights (here)].

4. A sad lesson that will go unlearned in the United States: dictating rather than engaging and bringing people
along rather than ordering them as objects of societal reconstruction (no doubt for all the right and good reasons that may come to mind), when combined with s dismissive arrogance, is a
recipe for tragedy in mass democratic states--for those on the left and right altogether too comfortable dictating. [The elites on the left and right awake to the realization tat they failed to manage the electorate fully successfully and the hand wringing that followed (here)].

5. It is common for aristocratic leaders to blame their own people for their alienation from the people; in 1780s France, for the leader of aristocratic culture, it was "let them eat cake,"; in 2016 for a leader of aristocratic culture in the United States it was "What we do know is that people like me, and probably like most readers of The New York Times, truly didn’t understand the country we live in;" the result is the same. [2016 the year that that the American aristocracy of the robe and the sword were rendered irrelevant by the masses who voted and who did not (here)].6. Mao Zedong reminds us that “A revolution is not a dinner party, or writing an essay, or painting a picture, or doing embroidery; it cannot be so refined, so leisurely and gentle, so temperate, kind, courteous, restrained and magnanimous. A revolution is an insurrection, an act of violence by which one class overthrows another;” yet through soft coups (strategic impeachment) in democratic states those who would have their revolution and their tea might indulge both. [2016 marked the year of the soft coup in Brazil (here), and thoughts of strategic impeachment in the United States (here)].

7. The stronger global civil society the more likely that its interests will be seen as adverse to states; yet ironically that is not what states see when they seek to banish global civil society within their borders--the only thing states see in civil society is other states--the great blindness of an ideology grounded in the presumption that only states can be "seen." [2016 saw a wave of national regulations to restrict, banish or demonize civil society as the means through which foreign states hide their intervention in other states (here, here, here,. and here)]

(U.N. Human Rights related presentation, Geneva Switzerland 2016)

8. Society complains that about its intelligentsia "writing crap that no one reads,"; yet that same society insists on affirming as the test for admission to the intelligentsia demonstration of the ability to write that very crap that no one reads; but more troubling in this complaint is the unconscious embrace of a sort of factory output
notion of mass utility that speaks more to a perversion of mass culture
than it does to the way one might value knowledge production to society
over a long time horizon. [on the expanding "crisis" of scholarship and its effect on social support for tenure and the autonomous work of the academic researcher (here)].

9. The linking of sports and politics in the West has a long history; the institutional culture of professional sports mimics that of government; in both cases there is a rule for
everything, officials to oversee them, and owners to manage expectations
through huge media operations and dialogue with the press; it surprises no one that the year that saw the election of Mr. Trump also saw a reduction in National Football League game viewership; in both cases all the passion has been penalized out of the game. [A colleague noted: with
3 minute reviews, 14 different camera angels, 7 minute timeouts for
challenges, it is starting to have the feel of every news network during
a controversial national story (here, here, and here)].

10. The most effective appropriators of culture are those individuals who appropriate to themselves the power to determine the consequences of appropriating culture; such a purity police surely prefer their cultures dead and stable to living and beyond control. [thinking about the cultural appropriation debates that became newsworthy in 2016 (here, and here)].

11. In a world whose elites have ascribed the profoundest hurt and judgment to names and name calling, why is white trash still bandied about as if it was a technical term? [on the denigration and empowerment of "white trash" in 2016 (here)].

12. This is the year that Marxism confronted its two essential questions: first
the role of markets as a Leninist tool; second the contradiction of
labor in Marxism as both a means of production and its object. [On the two distinct tracks to socialist progress that were marked by Chinese and Cuban Leninism in 2016 (here and here)].

13. Is it possible for "the people" to be wrong? Only if they agree
to be; that is possible in a state constrained by
higher principles and purposes, and an institutional structure that
enforces them; that is impossible in a state in which there is no
higher value than custom, tradition, and expectation where current
expression is by definition the performance of "right." [A year for questioning the character of sovereignty and rights and the national character of ISIS (here, and here)].

14. In a culture of men, the active principle of maleness is preserved even at the heart of the feminist enterprise; it is no surprise then that the protection of the female would be perceived through men as it has been in every age of this epoch of patriarchy: -- from the reforms of chivalry codes to the cultures of virtue in
ancient times; and so the wheel turns again and produces our version of
angst and response. [on maleness as the centering point for cultural knowledge and legal reform from the university to the criminal code (here, here, here, here, and here)].

15. In the West, the fixation on the performance of voting and the creation
of a fiction of finality, no matter how close the vote, colors response
and consequence. [Bexit (here)].

16. Economists are right when they draw attention to transaction costs: in political terrorism the transaction costs of death are directly related to the value that death produces for its purposes. [In a year of political and sectarian violence it became clear that the
success of terrorist acts was inversely related to its coverage or in
the intensity of global reaction (here)].

17. The political value of life varies like the economic value of currency; its exchange rates are manifested in the political economy of terrorism and exposes the corruption of the moral equivalence of life in the service of markets for political and economic power.

18. Terrorist, settler, migrant, ex patriot: nouns are the judgments of communities not the identification of self.

19. The morality of warfare is determined by the power of the warrior state in the short term, by the community of states in the medium term, and by the imperatives of demographics in the long term. [On the use of drones in warfare and a consideration of Turkish use of drones to murder the opponent of the current Turkish president in the wake of the so-called Turkish coup of 2016 (here)].

20. Terrorism relies on its victims for its success; the object of terrorism is not the killing act ostentatiously and cruelly undertaken, but to leverage the the reaction and retaliation to its own ends; the ultimate perversion of terrorism--domestic or foreign, crude or sophisticated, conscious or unconscious--is the manipulation of stronger powers to serve as its unwitting agents. [from mass shootings to terrorist attacks in 2016 (here, here, here, here, and here)]

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.